U.S. Court Says Nothing Wrong With 9/11 Detentions

by Jim Lobe

New York-based Human Rights Watch (HRW) said that Tuesday's federal appeals court decision would open the door to widespread secret detentions on immigration charges, and the American Civil Liberties Union (ACLU) charged that the appeals court ignored mounting evidence of government misconduct in its treatment of more than 700 detainees.

"Secret detentions have no place in a democracy," said Jamie Fellner, HRW's U.S. program director. "Yet the court has given the government permission to cast a mantle of darkness over its arrests. These should not be justified simply by invoking the words 'national security,'" he added.

The 2-1 ruling by the Circuit Court of Appeals for the District of Columbia marks a major victory for Attorney General John Ashcroft, who has vigorously defended the immigrant roundups that followed the Sept. 11, 2001 attacks on New York and the Pentagon despite the numerous abuses alleged in a June 2 report by the Department of Justice Inspector General (IG).

"Today's ruling is a victory for the Justice Department's careful measures to safeguard sensitive information about our terrorism investigations as well as the privacy of individuals who chose not to make public their connection to the government's probe," Ashcroft said in a written statement.

"The Justice Department is working diligently to prevent another catastrophic attack on America. We are pleased the court agreed we should not give terrorists a virtual road map to our investigation that could allow terrorists to chart a potentially deadly detour around our efforts."

"This unprecedented decision is particularly unfortunate in light of this month's revelation by the Justice Department," said Steven Shapiro, the ACLU's legal director. "As the lower court ruled -- and as the Justice Department's own internal watchdog recently demonstrated -- secret arrests are 'odious in a democratic society.'"

The IG's report documented a range of serious abuses committed against the immigrants in detention, particularly the "unduly harsh" conditions in which they were held, including abusive treatment by guards and round-the-clock illumination of their cells.

A lawyer for the Washington-based Center for National Security Studies (CNSS) suggested that her group and other organizations that had brought the case would probably appeal it to the Supreme Court or to an appeals court with more members. "We're disappointed that for the first time ever, a U.S. court has sanctioned secret arrests," said Kate Martin, one of the plaintiffs' lead attorneys.

The case was brought in December 2001 by a number of public-interest groups when the Justice Department had rounded up hundreds of immigrants for violating their visas or as "material witnesses" for the investigation into the terrorist attacks. At least 762 immigrants were detained in New York City and New Jersey, according to the IG's report, of whom more than 500 have since been deported.

Plaintiffs, including HRW and the ACLU, went to court to demand the release of the names of those detained after the Justice Department refused to do so following a Freedom of Information Act (FoIA) request. Instead, the Attorney General's office argued that it had broad authority to keep all of the names secret lest their disclosure compromise national security.

Last August, District Court Judge Gladys Kessler, who had dismissed the government's claims as "pure speculation," ordered the names released but delayed enforcement of the order pending an appeal to a higher court.

Tuesday's majority decision overruled her order and found that the government should have broad discretion to protect national security.

"America faces an enemy just as real as its former Cold War foes, with capabilities beyond the capacity of the judiciary to explore," the majority wrote. "We hold that the government's expectation that disclosure of the detainees' names would enable al-Qaeda or other terrorist groups to map the course of the investigation and thus develop the means to impede it is reasonable."

"A complete list of names informing terrorists of every suspect detained by the government at any point during the Sept. 11 investigation would give terrorist organizations a composite picture of the government investigation, and since these organizations would generally know the activities and locations of its members on or about Sept. 11, disclosure would inform terrorists of both the substantive and geographic focus of the investigation," they said.

In a harsh dissent, Circuit Judge David S. Tatel, the only one of the three judges to have been appointed by a Democratic president, accused the majority of eviscerating the FoIA and argued that the government should at least provide a specific basis for withholding the detainees' names, rather than imposing a blanket rule for the treatment of all detainees.

While the government, he conceded, had a "uniquely compelling" public interest in the successful investigation of the Sept. 11 attacks, he said the majority decision overlooked the interest of citizens to know whether their government "is violating the constitutional rights of the hundreds of persons whom it has detained in connection with its terrorism investigation."

The ACLU noted that the court appeared to have completely ignored the IG's report, which also criticized the Federal Bureau of Investigation (FBI) for failing to quickly distinguish between detainees actually suspected of having a connection to terrorism from those who clearly had none at all and were simply being held -- in some cases for months -- on minor immigration violations.

"Secrecy breeds abuses," said the ACLU's Shapiro. "A government of the people and for the people must be visible to the people."